[Federal Register: July 11, 2002 (Volume 67, Number 133)]
[Proposed Rules]               
[Page 45948-45952]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy02-22]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 258

[F-2002-AIRP-FFFP; FRL-7227-8]
RIN 2050-AE91

 
Municipal Solid Waste Landfill Location Restrictions for Airport 
Safety

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing action to amend the location restriction 
requirements in the criteria for municipal solid waste landfills 
(MSWLFs). EPA is amending this provision in order to incorporate new 
landfill siting requirements enacted in the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century (Ford Act). The Ford Act 
siting restrictions apply to specified smaller public airports to 
address the potential hazard that birds attracted to MSWLFs may pose to 
aircraft operations. Today's proposed amendment does not affect 
existing MSWLFs.
    In the ``Rules and Regulations'' section of today's Federal 
Register, EPA is promulgating this amendment as a direct final rule 
without prior proposal because we view this as a noncontroversial 
amendment and anticipate no adverse comment. In the event that EPA 
receives adverse comments on the direct final rule, we will address all 
public comments in a subsequent final rule based on this proposed rule; 
and, we will not institute a second comment period on this action. If 
we receive no adverse comment, we will not take any further action on 
this proposed rule. Any parties interested in commenting must do so at 
this time.

DATES: Comments must be received on or before August 12, 2002.

ADDRESSES: This section provides addresses regarding: (1) Where and in 
what form you should submit responses to today's action; (2) where you 
can view public comments responding to this action; and (3) where you 
can view the docket index and supporting documents to the proposed 
rule. Please reference RCRA Docket No. F-2002-AIRF-FFFF in your 
comments. You may submit your comments (1) in hard copy (paper) either 
by mail or by hand or (2) using electronic mail, as follows:
     Mail: Submit an original and two hard copies to the RCRA 
Docket Information Center, Office of Solid Waste (5305W), U.S. 
Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania 
Ave., NW, Washington, DC 20460.
     Hand Deliveries: Submit an original and two hard copies to 
the RCRA Information Center (RIC), Crystal Gateway I, First Floor, 1235 
Jefferson Davis Highway, Arlington, Virginia 22202.
     Electronic Submissions: Via the Internet to: rcra-
docket@epa.gov. You must provide your electronic submissions as ASCII 
files; and, you must avoid the use of special characters and any form 
of encryption. Comments in electronic format should also be identified 
by referencing RCRA Docket No. F-2002-AIRF-FFFF.
    See the SUPPLEMENTARY INFORMATION section for information about 
where and how you can view the docket for this rule, including 
electronic access to some of the information such as the docket index 
and supporting documents.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 800-424-9346 or TDD 800-553-7672 (hearing impaired). In 
the Washington, DC, metropolitan area, call 703-412-9810 or TDD 703-
412-3323 (hearing impaired).
    For information on specific aspects of this rule, contact Mary T. 
Moorcones, Municipal and Industrial Solid Waste Division of the Office 
of Solid Waste (mail code 5306W), U.S. Environmental Protection Agency 
Headquarters (EPA, HQ), 1200 Pennsylvania Avenue, NW, Washington, DC 
20460; telephone: 540-338-1348; e-mail: 
moorcones.mary@epamail.epa.gov>.
    You can also access some information about this rule electronically 
via the Internet at: http://www.epa.gov/epaoswer/non-hw/muncpl/
landfill/airport.htm>.

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially regulated by this action are public or private 
individuals or groups seeking to construct or establish new municipal 
solid waste landfills (MSWLFs) near specified airports after April 5, 
2000. Affected categories and entities are included in the following 
table:

------------------------------------------------------------------------
                Category                  Examples of regulated entities
------------------------------------------------------------------------
Federal Government.....................  Agencies constructing or
                                          establishing new MSWLFs within
                                          six miles of a public airport.
State, Local and Tribal Government.....  Governments constructing or
                                          establishing new MSWLFs within
                                          six miles of a public airport.
------------------------------------------------------------------------

    The table above is not intended to be exhaustive but rather to 
provide examples of entities likely to be regulated by this action. To 
determine whether your facility would be impacted by this action, you 
should carefully examine the applicability criteria in the rule. If you 
have questions regarding the applicability of this action to a 
particular facility, please contact Mary T. Moorcones, U.S. 
Environmental Protection Agency, Office of Solid Waste (5305W), 1200 
Pennsylvania Avenue, NW., Washington, DC 20460; telephone: 540-338-
1348; e-mail: moorcones.mary@epamail.epa.gov>. Entities considering 
construction or establishment of a new MSWLF also should contact the 
Federal Aviation Administration (FAA) to determine if an airport within 
six statute miles of the new MSWLF meets the criteria established by 
FAA to comply with the statute. The FAA can be contacted at the FAA's 
Office of Airport Safety and Standards, Airport Safety and 
Certification Branch, at 800-842-8736,

[[Page 45949]]

Ext. 73085 or via e-mail at WebmasterARP@faa.gov>.

Acronyms

    The full names for the acronyms used in this document are listed in 
the following table:

------------------------------------------------------------------------
               Acronym                            Definition
------------------------------------------------------------------------
AC..................................  Federal Aviation Administration
                                       Advisory Circular 150/5200-34,
                                       together with its Appendix 1,
                                       dated August 26, 2000.
CFR.................................  The United States Code of Federal
                                       Regulations.
EPA.................................  The United States Environmental
                                       Protection Agency.
FAA.................................  The United States Federal Aviation
                                       Administration.
Ford Act............................  Wendell H. Ford Aviation
                                       Investment and Reform Act for the
                                       21st Century.
MSWLF...............................  Municipal Solid Waste Landfill.
NTTA................................  National Technology and Transfer
                                       Act of 1995.
OMB.................................  The United States Office of
                                       Management and Budget.
RCRA................................  The Resource Conservation and
                                       Recovery Act.
RIC.................................  Resource Conservation and Recovery
                                       Act Information Center.
UMRA................................  Unfunded Mandates Reform Act of
                                       1995.
U.S.................................  United States.
U.S.C...............................  United States Code.
------------------------------------------------------------------------

Where To Find and View Information About This Rule

    All documents in the docket for this rulemaking, including public 
comments, are available for review in the RCRA Information Center 
(RIC), located at Crystal Gateway I, First Floor, 1235 Jefferson Davis 
Highway, Arlington, VA. The RIC is open from 9 a.m. to 4 p.m., Monday 
through Friday, excluding federal holidays. To review the docket 
materials in person, we recommend that the public make an appointment 
by calling 703-603-9230. The public can hard copy a maximum of 100 
pages from the docket at no charge. Additional copies cost $0.15/page.
    You can access the Index to the docket and the supporting documents 
electronically on the Internet at:
http://www.epa.gov/epaoswer/non-hw/muncpl/landfill/airport.htm>. If you 
access the information electronically, you can download or print copies 
free of charge.

Preamble

Outline

I. Legal Authority for Today's Proposed Rule
II. Why We Are Proposing an Amendment to the MSWLF Location 
Restrictions for Airport Safety
III. Description of How Today's Proposed Action Would Change the 
Current Regulations
IV. Description of Today's Proposed Amendment to MSWLF Location 
Restrictions for Airport Safety
    A. Landfills to Which the Proposed New Restrictions Apply
    B. Exemptions to the Limitations
V. How the States and Tribes Implement This Rule
VI. Why We Are Also Promulgating This Proposed Amendment As a Direct 
Final Rule Without Prior Proposal
VII. Applicability of Relevant Statutes and Executive Orders to 
Today's Proposed Rule
    A. Executive Order 12866: Regulatory Planning & Review
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act
    D. Paperwork Reduction Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. National Technology Transfer & Advancement Act of 1995
    I. Executive Order 12898: Environmental Justice
    J. Executive Order 13211: Energy Effects

I. Legal Authority for Today's Proposed Rule

    The EPA is proposing this rule under Sections 1008(a), 2002 
(general rule making authority), and 4004 of the Resource Conservation 
and Recovery Act of 1976, as amended, 42 U.S.C. 6907(a), 6912, 6944.

II. Why We Are Proposing an Amendment to the MSWLF Location 
Restrictions for Airport Safety

    On April 5, 2000, Congress enacted the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century (Ford Act), Public Law 
106-181. Section 503 of the Ford Act includes a provision limiting the 
``construction or establishment'' of municipal solid waste landfills 
(MSWLFs) within six miles of certain smaller public airports. The FAA 
issued guidance regarding the requirements of the Ford Act in FAA 
Advisory Circular (AC) 150/5200-34 (August 26, 2000). Today's proposed 
rule incorporates the statutory requirement into EPA's Criteria for 
Municipal Solid Waste Landfills, 40 CFR part 258. Specifically, we are 
proposing to amend the location restriction requirements pertaining to 
airport safety found in Sec. 258.10 of the criteria by adding this new 
location restriction to the existing location restrictions.
    Section 503 of the Ford Act was enacted to address the potential 
hazard posed to aircraft by birds attracted to landfills. According to 
the Federal Aviation Administration (FAA), an estimated 87 percent of 
the collisions between wildlife and civil aircraft occurred on or near 
airports when aircraft were less than 2,000 feet above ground level. 
Collisions with wildlife at these altitudes are especially dangerous 
because aircraft pilots have minimal time to recover. Databases managed 
by the FAA and the United States Air Force show that more than 54,000 
civil and military aircraft reported strikes with wildlife from 1990 to 
1999 (FAA AC No. 150/5200-34).

III. Description of How Today's Proposed Action Would Change the 
Current Regulations

    40 CFR 258.10 sets forth location restrictions for MSWLFs to 
address airport safety. The Sec. 258.10(a) and (c) contain requirements 
for new MSWLFs, existing MSWLFs and lateral expansions of landfills 
that are located within 10,000 feet of any airport runway used by 
turbojet aircraft or within 5,000 of any airport runway used only by 
piston-type aircraft. Owners or operators of such landfills are 
required to (1) demonstrate that the MSWLFs are designed and operated 
so as not to ``pose a bird hazard to aircraft,'' (2) place a copy of 
the demonstration in the MSWLF operating record, and (3) notify the 
State Director that it has been placed in the operating file. ``State 
Director'' is defined as ``the chief administrative officer of the lead 
state agency responsible for implementing the state permit program for 
40 CFR part 257, subpart B and 40 CFR part 258 regulated facilities.''
    Section 258.10(b) applies to new MSWLFs and lateral expansions 
proposed to be constructed within a five-mile radius of the end of any 
airport runway used by turbojet or piston-type aircraft. For such 
proposed new MSWLFs and lateral expansions, the owner or operator must 
notify the affected airport and the FAA.
    Section 258.10(d) defines ``airport'' to mean a ``public-use 
airport open to the public without prior permission and without 
restrictions within the physical capacities of available facilities.'' 
This subsection also defines ``bird hazard.''

IV. Description of Today's Proposed Amendment to MSWLF Location 
Restrictions for Airport Safety

    Today's proposed rule adds a new paragraph (e) to Sec. 258.10 that 
incorporates the location restrictions enacted in Sec. 503 of the Ford 
Act

[[Page 45950]]

prohibiting construction or establishment of a new MSWLF within six 
miles of a ``public airport.'' A ``public airport'' is one that: (1) 
Has received grants under the Airport and Airway Improvement Act of 
1982, as amended (chapter 471, 49 U.S.C. 47101, et. seq.) and (2) is 
primarily served by general aviation aircraft and regularly scheduled 
air carrier operations that use aircraft designed for 60 passengers or 
less. Today's proposed rule applies to MSWLFs (as defined in 40 CFR 
257.3 through 257.8) that receive putrescible waste (as defined in 40 
CFR 257.3 through 257.8).

A. Landfills to Which the Proposed New Restrictions Apply

    The new six (6) mile restriction only applies to new MSWLFs 
constructed or established after April 5, 2000. ``Construct a MSWLF'' 
is defined as in Appendix 1 of the FAA AC 150/5200-34 as ``excavate or 
grade land, or raise structures, to prepare a municipal solid waste 
landfill as permitted by the appropriate regulatory or permitting 
authority.'' ``Establish a MSWLF'' is defined in Appendix 1 of the FAA 
AC 150/5200-34 as a MSWLF that ``receives[s] the first load of 
putrescible waste on site for placement in a prepared municipal solid 
waste landfill.''
    To determine whether an airport in the vicinity of a proposed MSWLF 
is an airport that is subject to the Ford Act, the landfill owner or 
operator should contact the FAA. As the FAA guidance indicates, those 
airports covered by the Ford Act do not fall into a classification or 
category that has been established by the FAA or other legislation. See 
FAA AC No. 150/5200-34, section 8. If the airport in question does not 
meet the definition in the Ford Act, then today's rule does not apply 
to the proposed landfill. If the airport in question meets the Ford Act 
definition, then the proposed landfill must be located at least six 
miles from the airport. The FAA AC 150/5200-34 also provides guidance 
for determining whether a new MSWLF falls within the six mile range. 
The six mile distance is to be measured from ``the closest point of the 
airport property boundary to the closest point of the MSWLF property 
boundary (FAA AC No. 150/5200-34, section 9).

B. Exemptions to the Limitations

    The six mile siting limitation does not apply to: (1) A MSWLF where 
construction or establishment began on or before April 5, 2000; (2) an 
existing MSWLF that received putrescible waste on or before April 5, 
2000; (3) an existing MSWLF (constructed or established before April 5, 
2000) that is expanded or modified after April 5, 2000; or (4) MSWLFs 
in the State of Alaska. In addition, the aviation agency of the state 
in which the airport is located can request an exemption from the six 
mile limitation from the FAA for a new MSWLF. Section 10 of the FAA AC 
No. 150/5200-34 sets out the procedure for applying for an exemption.
    New MSWLFs that are not subject to the six mile siting limitation, 
including those in the State of Alaska, continue to be subject to the 
landfill siting criteria at 40 CFR 258(a)-(d).

V. How the States and Tribes Implement This Rule

    EPA recognizes that today's rule and the language in the Ford Act 
are more stringent than the existing 258.10 location restrictions 
because the boundary for newly constructed or established MSWLFs is 
moved from five miles to six miles from certain airports. However, EPA 
does not deem this change to be significant. This provision concerns 
only new MSWLFs constructed or established after April 5, 2001. EPA 
does not expect many new landfills to be constructed, and expects fewer 
still to be located in the vicinity of an airport defined in section 
503 of the Ford Act. In addition, EPA notes that the statutory 
restriction in section 503 of the Ford Act applies to such new MSWLFs 
regardless of whether EPA incorporates its terms into the MSWLF 
criteria. Therefore states are not required to amend permit programs 
which have been determined to be adequate under 40 CFR part 239. States 
however have the option to amend statutory or regulatory definitions 
pursuant to today's rule. If a state chooses to amend its permit 
program pursuant to today's action, the state must notify the Regional 
Administration of the modification as provided by 40 CFR 239.12. 
Today's amendments are directly applicable to landfills in states 
without an approved permit program under Part 239, and in Indian 
Country. We also encourage tribes to adopt today's amendments into 
their programs.

VI. Why We Are Also Promulgating This Proposed Amendment As a 
Direct Final Promulgation Without Prior Proposal

    In the ``Rules and Regulations'' section of today's Federal 
Register, EPA is also promulgating this amendment as a direct final 
rule without prior proposal because we view this as a noncontroversial 
amendment and anticipate no adverse comment because it simply 
incorporates the legislative directive of the Ford Act. We explained 
our reasons in the Preamble to the direct final rule. EPA is making 
this change in order to eliminate potential confusion between the new 
requirements under the Ford Act and the MSWLF criteria, promulgated in 
1991 pursuant to the Resource Conservation and Recovery Act (RCRA). The 
final rule will be effective on October 9, 2002, without further notice 
unless we receive adverse comment by August 12, 2002. If we receive no 
adverse comment, we will not take further action on this proposed rule. 
If EPA receives adverse comment, we will publish a timely withdrawal of 
the direct final rule in the Federal Register informing the public that 
the direct final rule will not take effect. We will address all public 
comments in a subsequent final rule based on the proposed rule. We will 
not institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. A comment will be 
considered adverse if it: (1) Is negative and addresses the basis or 
purpose of the rule; (2) suggests that the rule should not be adopted 
or offers facts or data contrary to the basis upon which EPA relied in 
issuing the rule; (3) recommends changes that suggest that the rule 
without these changes would be inappropriate; and (4) is germane. A 
comment is not adverse if it: (1) Is not clearly related to the subject 
of the rule and/or (2) supports the rule or is irrelevant to the rule 
(e.g., a comment addressing an aspect of the program not considered in 
the rule).

VII. Applicability of Relevant Statutes and Executive Orders to 
Today's Rule

A. Executive Order 12866: Regulatory Planning & Review

    Under Executive Order 12866, EPA must determine whether a 
regulatory action is significant and therefore subject to Office of 
Management and Budget (OMB) review and the other provisions of the 
Executive Order. Executive Order 12866 defines a significant regulatory 
action as one that is likely to result in actions that may: (1) Have an 
annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of

[[Page 45951]]

recipients thereof; or (4) raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the Executive Order.''
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review. Today's rule, deals only with 
siting of future individual MSWLFs after the statute's passage, does 
not have an adverse impact on the economy, the environment, the public, 
or governments. Similarly, it neither interferes with other agencies 
nor impacts other programs, the President's priorities, or legal 
mandates. Indeed, today's direct final rule codifies a legal mandate 
that enhances public safety and is more protective of wildlife than 
doing nothing.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq., 
generally requires an agency to prepare, and make available for public 
comment, a regulatory flexibility analysis that describes the impact of 
a proposed or final rule on small entities (i.e., small businesses, 
small organizations, and small governmental jurisdictions). The 
regulatory flexibility analysis is not required if the head of an 
agency certifies that the rule will not have a significant adverse 
impact on a substantial number of small entities. If the agency 
certifies that there is no such impact, the agency must provide a 
statement of the factual basis for the certification.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities.
    The following discussion explains EPA's factual basis for our 
certification that this proposed rule will not have a significant 
adverse impact on a substantial number of small entities. This proposed 
rule does not impact any existing MSWLFs, only future construction and 
establishment of MSWLFs begun after the date of the enactment of the 
statute (April 5, 2000). There will be no added costs to those entities 
involved in establishing or constructing new MSWLFs because this 
proposed rule will not increase the requirements for landfills begun on 
or before the enactment of the statute; it will only affect their 
location. Similarly, it will not increase requirements for existing 
landfills, regardless of size. As a result, today's proposed rule will 
not impose significant new burdens on small entities. Therefore, for 
the reasons stated above, the EPA certifies that the proposed rule will 
not have a significant impact on a substantial number of small 
entities.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of regulatory actions on state, local, and tribal governments, 
and the private sector. Under Section 202 of the UMRA, EPA generally 
must prepare a written statement, including a cost-benefit analysis, 
for proposed and final rules with ``Federal mandates'' that may result 
in expenditures to state, local, and tribal governments--either in the 
aggregate or to the private sector--of $100 million or more in any one 
year. Before promulgating an EPA rule for which a written statement is 
needed, Section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of alternatives and adopt the least 
costly, most cost effective, or least burdensome alternative that 
achieves the objective of the rule. The above requirements of Section 
205 do not apply when they are inconsistent with applicable law. 
Moreover, Section 205 allows EPA to adopt an alternative other than the 
least costly, most cost-effective or least burdensome alternative if 
the Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed 
(under Section 203 of the UMRA) a small government agency plan. The 
plan must provide for: (1) Notifying potentially affected small 
governments; (2) enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant federal intergovernmental mandates; and (3) 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    Today's proposed rule does not contain any federal mandates that 
are covered under the regulatory provision of Title II of the UMRA that 
apply to state, local, or tribal governments or the private sector. The 
rule does not impose any additional enforceable duty on any state, 
local, or tribal governments or on the private sector. Thus, today's 
proposed rule is not subject to the requirements of Sections 202 and 
205 of UMRA.

D. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., requires the 
federal government (and thus EPA) to minimize the paperwork burden 
resulting from any collection of information by or for the federal 
government. Under 44 U.S.C. 3501 et seq., EPA must submit a request to 
collect the information, together with a copy of the rule, to the 
Office of Management and Budget (OMB) in those cases where EPA is 
collecting information in a notice of proposed or final rule making. 
EPA does not plan to submit an ICR to OMB for review under the 
Paperwork Reduction Act, 44 U.S.C., 3501 et seq. because there are no 
information collection requirements associated with today's proposed 
rule.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
The phrase, ``policies that have federalism implications,'' is defined 
in the Executive Order to include regulations that have ``substantial 
direct effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.''
    Today's proposed rule does not have federalism implications. It 
will not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. The proposed rule 
does not impose any requirements, implementation duties, enforcement 
duties, monitoring requirements, or reporting requirements on states. 
Thus, Executive Order 13132 does not apply to this proposed rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development or

[[Page 45952]]

regulatory policies that have tribal implications.'' ``Policies that 
have tribal implications'' are defined in the Executive Order to 
include regulations that have ``substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal government 
and the Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.''
    Under section 5(b) of Executive Order 13175, EPA may not issue a 
regulation that has tribal implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by tribal governments, or EPA consults with 
tribal officials early in the process of developing the proposed 
regulation. Under section 5(c) of Executive Order 13175, EPA may not 
issue a regulation that has tribal implications and that preempts 
tribal law, unless the Agency consults with tribal officials early in 
the process of developing the proposed regulation.
    This proposed rule does not have tribal implications, as specified 
in Executive Order 13175. Today's action incorporates requirements that 
are already in effect pursuant to the Ford Act. Thus, Executive Order 
13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and must explain why the planned regulation 
is preferable to other potentially effective and reasonably feasible 
alternatives considered by the EPA.
    This proposed rule is not subject to the Executive Order because it 
is not economically significant as defined in Executive Order 12866 and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action, i.e., hazards to 
aircraft from birds attracted to municipal solid waste landfills, 
present a disproportionate risk to children.

H. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTA''), Public Law 104-113, Section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or would be otherwise impractical. Voluntary consensus 
standards are technical standards (e.g., materials specifications, test 
methods, sampling procedures, and business practices) that are 
developed or adopted by voluntary consensus standards bodies. The NTTA 
directs EPA to provide Congress, through OMB, explanations when the EPA 
decides not to use available and applicable voluntary consensus 
standards.
    Today's proposed rule does not involve technical standards. 
Therefore, EPA did not consider the use of any voluntary consensus.

I. Executive Order 12898: Environmental Justice

    EPA has undertaken to incorporate environmental justice into its 
policies and programs through: (1) Executive Order 12898, ``Federal 
Actions to Address Environmental Justice in Minority Populations and 
Low-Income Populations''; (2) EPA's April 1995, ``Environmental Justice 
Strategy, Office of Solid Waste and Emergency Response Environmental 
Justice Task Force Action Agenda Report''; and (3) the National 
Environmental Justice Advisory Council. EPA is committed to addressing 
environmental justice concerns, and has assumed a leadership role in 
environmental justice initiatives to enhance environmental quality for 
all residents of the United States. The Agency's goals are to ensure: 
(1) That no segment of the population--regardless of race, color, 
national origin, or income--bears disproportionately high and adverse 
human health and environmental effects as a result of EPA's policies, 
programs, and activities; and (2) that all people live in clean and 
sustainable communities. The EPA believes that today's proposed rule, 
which conforms the language in 40 CFR 258.10 to the Ford Act, has no 
adverse environmental or economic impact on any minority or low-income 
group, or on any other type of affected community. These standards 
would not affect the location of any MSWLF other than to prohibit the 
location of MSWLFs within six miles of a public airport as defined in 
the proposed rule.

J. Executive Order 13211: Energy Effects

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' because it is not a significant 
regulatory action under Executive Order 12866.

List of Subjects in 40 CFR Part 258

    Environmental protection, Reporting and recordkeeping requirements, 
Waste treatment and disposal, Water pollution control.

    Dated: May 31, 2002.
Christine Todd Whitman,
Administrator.
[FR Doc. 02-16995 Filed 7-10-02; 8:45 am]
BILLING CODE 6560-50-U